By Michael J. Parrish
North Carolina businesses commonly enter into contracts to buy or sell goods and services west of Murphy, north of Mount Airy, south of Charlotte, and even east of Ocracoke. When contracts such as these extend beyond state lines, businesses should intentionally assess and negotiate terms commonly called “choice of law” and “choice of forum” (or “forum selection”) provisions. These terms are up-front agreements to determine which state’s laws will govern any potential dispute relating to the contract, and in which state any potential lawsuit will be filed.
When potential disputes turn into actual litigation, choice of law and choice of forum provisions can be critical. For example, one state’s law may be more favorable to one of the parties, one of the parties could gain an advantage by litigating on its “home turf,” or one of the parties could save travel and business interruption cost by having the lawsuit filed nearby, rather than out of state. It isn’t uncommon for North Carolina businesses doing business with an entity from another state to see the advantage of applying North Carolina law and requiring litigation to occur in North Carolina.
By Joan H. Krause
In Universal Health Services v. United States ex rel. Escobar (UHS), the Supreme Court upheld the Civil False Claims Act (FCA) theory of “implied certification,” under which the submission of a claim for reimbursement “implies” that the claimant is in compliance with the statutes, regulations, and contract provisions necessary for that claim to be paid. Escobar was filed by the parents of a young woman who died after receiving Medicaid-covered mental health treatment from a Massachusetts clinic that violated state licensing and supervision regulations. Her parents alleged that the clinic’s claims were fraudulent because they implicitly (and falsely) represented that the facility was in compliance with the relevant provisions. A district court dismissed the suit, but the First Circuit reversed. In a unanimous opinion written by Justice Thomas, the Supreme Court held that where a defendant “makes specific representations about the goods or services provided, but knowingly fails to disclose . . . noncompliance with a statutory, regulatory, or contractual requirement[,] . . . liability may attach if the omission renders those representations misleading.” But cautioning that such misrepresentations must be “material to the Government’s payment decision,” the Court reversed and remanded because the First Circuit had applied an impermissibly broad test.
By Arty Bolick and John Ormand
On January 25, 2017, the Fourth Circuit Court of Appeals, dealt a significant blow to the traditional contractor-subcontractor relationship. In finding a contractor and subcontractor could be considered “joint employers” of the subcontractor’s workers for purposes of the Fair Labor Standards Act (“FLSA”), the court’s decision has opened a pandora’s box of potential wage and hour issues, including claims for overtime pay against contractors and higher tier subcontractors from the employees of lower tier subcontractors. Continue reading
By Jennifer Cory
On Sept. 5, 2017, the Trump administration announced rescission of the Obama administration’s 2012 Executive Order which created the Deferred Action for Childhood Arrivals (DACA) program. As of March 5, 2018, DACA will terminate. DACA has benefited approximately 800,000 recipients who came to the U.S. before the age of 16 and hold no valid immigration status by granting them temporary work authorization and relief from deportation.
Following the announcement, the U.S. Citizenship & Immigration Services (USCIS) halted acceptance of new DACA applications. Current DACA recipients with permits that expire before March 5, 2018 may apply for renewal by Oct. 5, 2017. As a result, some DACA recipients could lose work authorization as early as March 6, 2018, while others will be able to continue to use the program over the next two years. In addition, USCIS is no longer approving Advance Parole authorizing travel for DACA recipients. Whether those with existing Advance Parole will be permitted to return to the U.S. once DACA ends is uncertain. Having Advance Parole does not guarantee admission to the U.S., and the U.S. Department of Homeland Security may revoke or terminate it at any time.
Spend your Monday lunch hour chatting with a rock star while earning CLE/CPE credit. Register for the webcast “A Name Worth Fighting For: How Naming My Band The Slants Got Me To the Supreme Court,” featuring rocker Simon Tam, presented by the NCBA CLE Department. Members of the NCBA Intellectual Property Law, Litigation, and Sports & Entertainment Law sections enjoy a discounted rate.
Tam, founder and bassist of The Slants, will talk about how his fight with the U.S. Patent and Trademark Office over his band’s name led to a U.S. Supreme Court case. The webcast discussion runs from noon to 1 p.m. on Monday, Sept. 18. Tam will answer audience questions and speak frankly about racism, legal troubles and his incredible stories of playing in the world’s “first and only Asian-American dance rock band.”
Here’s a preview of Monday’s conversation, based on a Q&A with Joyce Brafford, NCBA’s Distance Learning Manager for CLE.
By Art MacCord
Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please click on the links below for the most recent updates.
Modified U.S. Copyright Office Provisional IT Modernization Plan
By Jennifer Parser
It is a good time to conduct an internal audit of I-9s because inspections and fines have not gone away and a new I-9 edition was published recently. An administrative law judge in the Office of the Chief Administrative Hearing Office fined a staffing company $276,000 in June 2017, reduced from the $367,000 originally imposed by Immigration and Customs Enforcement (ICE). While this is less than the highest fine of $605,250 imposed in 2015 on an events planning company for incomplete I-9s (there were only four missing I-9’s out of 339 employees), the reason for the staffing company’s fine was a failure to produce the I-9s to ICE within the three days of its request. So, Rule No. 1 taken from this latest large ICE fine: Have complete I-9s ready and available for inspection at all times.
Second, use the latest Form I-9. A new I-9 Form went into effect on July 17, 2017. The Jan. 1, 2107 version can be used until Sept. 17, 2017. After that, employers must only use the July 17, 2017 iteration. Rule No. 2: Never rely upon pre-printed I-9 forms. Always go to the website and download the latest version.
Topics: We encourage relevant, timely articles on substantive cross-border legal issues and any others that may be of interest to the international legal community in North Carolina.
Length: All articles are limited to 300-400 words. For articles exceeding this world limit, the author may: 1) edit the article into one article of 300-400 words, 2) serialize the article into two or more articles, or 3) include an abstract of the article as the blog post with author contact information for the reader. The International Law & Practice Section Blog Committee and the NCBA reserve the right to make final edits to the article before publication.
Process: If you believe that your proposed article meets the topic and length requirements set out above, please submit it to NCBAInternationalLawBlog@gmail.com with “NCBA International Law & Practice Section Article Submission” in the subject line. A committee member will get back to you shortly with a publication decision and proposed publication date(s).
Thank you for your interest in publishing with us. We look forward to working with you!
As a reminder, on Tuesday, Sept. 12 from 8 to 9 a.m, the NCBA Health Law Section will be hosting a networking breakfast. We are excited for an opportunity for our members and friends of the section to have a way to mingle in person and learn more about our section. As you probably know, the Health Law Section is an active chapter, and there are many ways that you can get involved, from CLE planning to pro bono. There are also opportunities for reduced membership dues for law students, so join us to learn more!
The breakfast will be at Robinson Bradshaw’s Charlotte office, located at 101 N. Tryon St., Suite 1900. Validated parking is available in the 101 Independence Center Garage (120 N. Church St.).
This a great opportunity for Health Law Section members in the Charlotte area. For any questions and to RSVP, please contact: firstname.lastname@example.org. See everyone on Tuesday!